Re Albert (a barrister) and McLean (a solicitor)
[2021] VSC 297
•26 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2021 00886
IN THE MATTER OF MATTHEW ALBERT (a barrister)
- and -
IN THE MATTER OF LUKE MCLEAN (a solicitor)
BETWEEN:
| RODGER BOWMAN (A PSEUDONYM) | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA | First Defendant |
| MINISTER FOR HOME AFFAIRS | Second Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3, 21 May 2021 |
DATE OF JUDGMENT: | 26 May 2021 |
CASE MAY BE CITED AS: | Re Albert (a barrister) and McLean (a solicitor) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 297 |
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LEGAL PRACTITIONERS – Inappropriate correspondence sent to court officer – Communications drafted by counsel and sent by solicitor without amendment – Where content and tone of correspondence contrary to Practice Notes of court – Whether conduct amounts to contempt of court – Whether correspondence had any tendency to influence the allocation of the judicial officer to hear the application – Whether referral ought be made to Legal Services Board and Commissioner and/or Victorian Bar Ethics Committee – Legal Profession Uniform Law (Vic) s 296; Australian Solicitors’ Conduct Rules 2015 r 4.1.2.
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APPEARANCES: | Counsel | Solicitors |
| For Mr Matthew Albert | Mr J Ruskin QC with Mr E J Batrouney (21 May 2021) | Direct brief |
| For Mr Luke McLean | Ms G L Schoff QC with Mr J E Hartley (3 May 2021) | Lander & Rogers |
| For Victoria Legal Aid | Mr O M Ciolek (3 May 2021) | Victorian Government Solicitor’s Office |
| For the Defendants | Ms M Jackson (solicitor) | Australian Government Solicitor |
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HIS HONOUR:
Introduction
This proceeding commenced as an application to the Practice Court but was subsequently transferred to the Federal Court of Australia by order of the Honourable Justice Croucher. The applicant, a non-citizen detained in immigration detention in New South Wales, contended that his detention was unlawful and sought leave to issue a writ of habeas corpus ad subjiciendum out of the court.
The present issue arises out of the court’s concern about the content and tone of communications between the applicant’s legal representatives and the registry officer with responsibility for applications to the Practice Court, Ms Laura Warren.
What happened?
The applicant was represented by Victoria Legal Aid (‘VLA’), where Mr Luke McLean, a solicitor, had conduct of the file. He retained Mr Matthew Albert of counsel.
On Friday 26 March 2021 at 12:59pm, Mr McLean spoke by phone with Ms Warren and foreshadowed the application. Ms Warren said that she would make enquiries regarding the proposed proceeding.
At 3:58pm by email to Ms Warren, Mr McLean formally applied for an urgent hearing stating that the applicant was seeking to reach a timetable by consent with the defendants (‘Friday email’). The substantive application was accompanied by a summons seeking a pseudonym for the applicant.[1] Mr McLean relevantly stated:
If the Court is minded to consider transferring this proceeding to the Federal Court, we would seek to be heard on this question given the evidence in the affidavit and we would also seek that the transfer question, if it arises, be heard by the current practice court duty judge.
[1]By virtue of s 91X of the Migration Act 1958 (Cth), federal courts are prohibited from publishing the name of protection visa applicants. It is common for a pseudonym order to be made prior to the issue of migration law proceedings in those courts.
The Friday email was drawn by Mr Albert. Mr McLean read the draft but did not make any substantive changes to it before sending it to the court. The email was not copied to any representatives for the defendants.
I pause to note, as the communication makes clear, that Mr Albert was alive to the prospect that the issue of transfer may have immediately arisen. In MB (a pseudonym) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘MB’),[2] MB, similarly incarcerated in immigration detention, sought the issue of a writ of habeas corpus for what he contended to be unlawful detention. Mr Albert appeared for the applicant. The court on its own motion raised the question of whether transfer to the Federal Court was required. Following a hearing on that issue, the proceeding was transferred to the Federal Court, where the application was promptly heard and determined.[3]
[2][2021] VSC 68 (‘MB’).
[3]MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442.
Returning to the chronology, that Friday afternoon, Ms Warren referred the application for a pseudonym to me, as the Principal Judge of the Common Law Division.
At 6:06pm, Mr McLean called the phone number for the associate to the judge in the Practice Court to enquire as to the status of the application. The associate to Croucher J (the judge in the Practice Court that weekend) informed Mr McLean that the proceeding had been referred to me.
On Saturday 27 March 2021 at 11:27am, Mr McLean again contacted Croucher J’s associate by phone, and was informed that he would shortly receive correspondence regarding the application.
At 11:54am, Ms Warren sent Mr McLean an email stating:
Dear Mr McLean,
I referred to a judge your application for a pseudonym for the plaintiff prior to the issue of a proceeding seeking habeas corpus. On the limited information presently available, his Honour has tentatively concluded, subject to any submission from the applicant, that it appears in the interest of justice to be more appropriate that this proposed proceeding, if and when filed in this court, should be immediately transferred to the Federal Court of Australia (refer Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s5).
The applicant is detained by the Commonwealth in a Commonwealth detention centre located in New South Wales. His status in this country is being determined by reference to the provisions of the Migration Act 1958 (Cth) and applications that have been made to a Commonwealth Minister. The applicant seeks immediately to invoke policy considerations pursuant to s 91X of the Migration Act in seeking a pseudonym order as the first step to commencing a proceeding in this court. Further, the issue of whether his continued detention is lawful which is to be determined on the return of the writ sought will turn on the interpretation of federal statutes and Commonwealth ministerial practices in respect of which the Federal Court system exercises a specialist jurisdiction.
Should the applicant wish to press for the relief sought, please provide forthwith, a written submission addressing the question of whether the court ought not conclude that it is in the interests of justice to transfer this proceeding. Unless so persuaded, if the proceeding is filed, the court does not propose to make any order other than an order for immediate transfer.
Kind regards,
Laura
At 1:04pm, Mr McLean replied stating (‘Saturday email’):
Dear Ms Warren,
When I called yesterday to seek to have this matter listed urgently you informed me that the Court would order transfer to the Federal Court. You told me this before you had received any of the materials in this case and by reference to what seemed to be a standing direction to you. You also mentioned that this matter would inevitably be dealt with in the first instance by John Dixon J. I have since called the phone number for the duty judge to seek an urgent hearing and been told that that judge does not have the papers and that any case management question needed to pass through you.
Your email does not identify the judicial officer on whose direction you sent the email below but it seems clear that this is not being dealt with by the duty judge, but by His Honour. The basis upon which one judge acts as gatekeeper to the court exercising jurisdiction left to it by Parliament is not known to us.
It is clear from your message yesterday and your email below that John Dixon J has a strict policy of blocking any immigration detention habeas corpus application from being heard by another judge in this Court.
It is difficult to reconcile that position with an exercise of judicial power being free of bias and acting on the material before the Court.
That material is clear on two critical points:
1.This particular application requires urgent attention because the unlawfully detained person is suffering significant and protracted pain for which he is being refused access to all necessary medication. He could get that medication without the interference of any Commonwealth officer if he was released by way of the grant of the writ of habeas corpus.
2. The Federal Court is not presently able to consider such applications for at least six weeks.
That evidence is in sworn form and is uncontradicted. The effect of it is that if this matter is transferred the practical effect of that transfer will be to leave this person in ongoing, unmanaged pain, barred from access to basic medicines for at least 6 weeks. Given his general state of health - including vomiting blood in recent days - it is possible that inadequate and non-timely medical care could have dire consequences.
It cannot be in the interests of justice for any person to be left exposed to significant pain in detention when that detention is not lawful and where the exposure is caused by the Court deferring or delaying determination of the question of its lawfulness. Transferring this proceeding to the Federal Court would have exactly that effect. As to his detention being unlawful, the Court is required by law to work on that presumption unless and until it is rebutted - see McHugh v Minister [2020] FCAFC 223 at [54], [258], [275].
To be clear, this is not the totality of the matters which we consider goes to the question of the application of the Cross-Vesting Act. For example, another reason is that the Federal Court lacks jurisdiction to deal with an application in this form (and John Dixon J was plainly wrong to hold otherwise in MB, including because he relied at [45] on his own previous judgment in a passage that is inconsistent with all other authority and has been described as ‘nonsense’; see EZ [2020] VSC 871[4] at fn 46). However in the time and circumstances, we put the above as a standalone, very significant matter going to this question which distinguishes it from other cases.
If this matter is being considered or determined by a person other than the Supreme Court duty judge after a hearing, it will be plain that it is a decision vitiated by bias, actual or apprehended, and a denial of procedural fairness (including the defendants) for the reasons set out above.
Without in any way consenting to such an approach, our clients best interests are served by this matter being heard substantively by a judge with jurisdiction as soon as possible.
Regardless of the course taken by the Court, we seek that this matter be dealt with urgently. We appreciate and apologise for the fact that this is a significant imposition on the Court given it is a weekend, but we submit that no other course is reasonable in the circumstances of this particular case.
Kind regards
Luke McLean
[4]EZ (a pseudonym) v Commonwealth of Australia [2020] VSC 871.
The Saturday email was drafted by Mr Albert and sent to Ms Warren by Mr McLean. The email was not copied to any representatives for the defendants.
At 3:02pm, my associate confirmed by email to Mr McLean (copying Mr Albert) the court’s directions regarding potential transfer of the proceeding, as previously conveyed by Ms Warren, and stated that the proceeding was listed for hearing before me on Monday 29 March 2021 at 9:30am. My associate suggested that Mr McLean take immediate steps to notify the defendants about the hearing, and to provide them with copies of all correspondence that had been exchanged with the court.
On Monday 29 March 2021, at 8:38am, Mr McLean emailed my associate, copied to the defendants’ solicitor, stating, inter alia:
We foreshadow that at this morning’s hearing, we intend to make an application that his Honour recuse himself from any consideration of, at least, the transfer of this proceeding to the Federal Court on the basis of actual or apprehended bias, or the residual power to recuse.
Mr McLean sent this email, drafted by Mr Albert, to Ms Warren without amendment.
I was indisposed and unable to sit in court that day, and I reallocated or vacated the matters listed before me. At 9:11am, my associate informed Mr McLean that the matter would be heard by Croucher J at 12:00pm.
At 9:27am, Mr McLean emailed my associate (‘Monday email’) relevantly stating:
I would also be grateful if you could advise whether the Honourable Justice Dixon has made a decision to recuse himself from further consideration of this matter, and when written reasons will be provided on the question of recusal.
Mr McLean typed the content of this message dictated by Mr Albert over the phone.
At 11:02am, my associate informed Mr McLean by email that I had not made any decision at all in relation to the matter, and I was indisposed and unable to sit at all, including on other matters listed that day.
The hearing proceeded before Croucher J on 29 and 30 March 2021. On 31 March 2021, Croucher J transferred the proceeding to the Federal Court, pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic).
The Court’s concerns
On 14 April 2021, the Prothonotary wrote to Mr McLean informing him that:
The Honourable Justice John Dixon directs you to appear before the Court at 9:30am on 3 May 2021 to provide any explanation and/or make any submission as to why the Court ought not:
(a)consider whether your conduct in the above proceeding, particularly your communications with the Practice Court Coordinator, Ms Laura Warren, constitutes a contempt of court; and/or
(b)otherwise refer your conduct to the Legal Services Board and Commissioner for any further investigation and action it deems appropriate.
The letter then noted certain Practice Notes issued by the court:
Practice Note SC Gen 2 (Structure of the Trial Division) (Practice Note 2) [informs the profession] that:
(a) each Division of the Trial Division has a Principal Judge; and
(b) the responsibilities of the Principal Judge include:
(i) overall supervision of cases in their Division; and
(ii) oversight of the allocation of cases for hearing.
Practice Note SC Gen 4 (Custom and Protocol) (Practice Note 4) [informs the profession] that:
(a)communications with the Court should take place via the relevant registry or through judges’ chambers via the relevant associate;
(b) all such communications:
(i)should be undertaken with care to ensure that the impartiality and integrity of the Court is not undermined;
(ii) must always be open and uncontroversial;
(iii) must be disclosed to all other practitioners; and
(iv)should, when seeking a time for hearing or agreement to a course of action (excepting ex parte hearings), be the subject of discussion with the other parties beforehand;
(c)where a party’s conduct risks compromising the Court as a result of a practitioner seeking from, or proposing to, the Court a course of action that may not be agreed to or that might be contested, that party should adopt the formal processes available by summons and operation of the Rules; and
(d)where a party seeks information pertaining to a judicial officer’s proposed course of action in respect of a proceeding, including timeframes for the listing of hearings, that query should be made in open court, with all appropriate parties present.
Practice Note SC CL 10 (Practice Court (Common Law)) (Practice Note 10) [informs the profession] that:
(a)the Practice Court hears certain applications in proceedings in, or which would be appropriate to be brought in, the Common Law Division;
(b)the judge sitting in the Practice Court hears urgent applications only; and
(c)where an urgent hearing is requested, the applicant should be prepared to provide certain information when making contact with the Court, including whether an application is to be made on notice or on an ex parte basis.
Notice to the Profession – Practice Court (Common Law) – COVID-19 (Notice to Profession) [informs the profession] that:
(a)as a result of the COVID-19 pandemic, the default position was that Practice Court applications would be determined, where possible, on the papers; and
(b)in the event of an exceptional circumstance requiring an urgent application in the Practice Court, the Practice Court Coordinator would inform the applicant whether, when and how the application would be determined.
The Prothonotary went on to identify specific particulars of conduct, drawn from the email correspondence I have set out:
[The Friday email]:
(a)was not copied to a representative of the defendants, contrary to the requirement to do so in Practice Note 4, despite:
(i)making a reference to ‘immediately’ seeking to negotiate a timetable with the defendants by consent, suggesting that you were in contemporaneous discussions with the defendants’ representatives; and
(ii) not having indicated that an ex parte hearing was sought;
(b)contained an improper submission that any question pertaining to transfer of the proceeding ‘be heard by the current practice court duty judge’, apparently seeking to direct the Court as to which judge should hear a matter.
You then made contact with Justice Croucher’s Associates on two separate occasions, despite knowing that the proceeding had not been issued or referred to that judge by Ms Warren. In doing so, the Court considers there is a serious question as to whether you commenced a process of inappropriately seeking to persuade Ms Warren or the Associates to Justice Croucher, in private correspondence, to act otherwise than in accordance with the usual process of allocation by the Court. It is not apparent to the Court whether these communications occurred with the knowledge or consent of the defendant’s representatives, as required by Practice Note 4 when an ex parte hearing is not sought.
In [the Saturday email], and most significantly, you made serious allegations of impropriety against a judge of the Court, including that he was improperly acting as a ‘gatekeeper to the court’ by adopting a ‘strict policy of blocking any immigration detention habeas corpus application from being heard by another judge in this Court’, in language that was factually incorrect, provocative, discourteous and/or controversial, despite:
(a)Justice Dixon having responsibility to supervise the allocation of all cases in the Common Law Division, as set out in Practice Note 2;
(b)the requirement that all communications with the Court occur with care to ensure the impartiality and integrity of the Court is not undermined, as set out in Practice Note 4;
(c)the requirement of conduct that may risk compromising the Court needing to be the subject of a formal process, rather than being raised in a communication with the Court, as set out in Practice Note 4; and
(d)when an urgent application to the Practice Court is sought, the applicant will be informed whether, when and how it would be determined, as set out in the Notice to the Profession.
In that same email, you contended privately to a registry lawyer, Ms Warren, but not to the judge’s chambers, that Justice Dixon’s conduct amounted to actual or apprehended bias, a failure to consider materials before the Court and a denial of procedural fairness, in language that was provocative, discourteous and/or controversial, despite:
(a)the proceeding not having been commenced;
(b)his Honour having made no decision in relation to the proceeding;
(c)[the Friday email]:
(i)stating that a judge had ‘tentatively concluded’ from the ‘limited information presently available’ that ‘it [appeared] in the interest of justice’ that the Federal Court of Australia was the more appropriate forum for the proceeding; and
(ii)inviting a submission from the plaintiff addressing that question before the Court made any decision in respect of the proceeding;
(d)Justice Dixon having responsibility to supervise the allocation of all cases in the Common Law Division, as set out in Practice Note 2;
(e)the requirement that all communications with the Court occur with care to ensure the impartiality and integrity of the Court is not undermined, as set out in Practice Note 4;
(f)the requirement of conduct that may risk compromising the Court needing to be the subject of a formal process, rather than being raised in a communication with the Court, as set out in Practice Note 4;
(g)the Practice Court hearing only urgent applications, as set out in Practice Note 10;
(h)the default position that Practice Court applications would be determined, where possible, on the papers, as set out in the Notice to Profession; and
(i)that where an urgent application to the Practice Court was submitted, the applicant would be informed whether, when and how it would be determined, as set out in the Notice to the Profession.
In that same email, you argued, in a contention to a registry lawyer, but not to the judge’s chambers:
(a)that a judge of the Court had erred in a previous decision, in language that was provocative, discourteous and/or controversial; and
(b)with the conclusion that the only manner in which a person seeking to bring an urgent application would receive a fair hearing was if it were determined by the assigned judge sitting in the Practice Court for the relevant after-hours period,
despite:
(c)the requirement that all communications with the Court occur with care to ensure the impartiality and integrity of the Court is not undermined, as set out in Practice Note 4;
(d)the requirement that conduct that may risk compromising the Court needing to be the subject of a formal process, rather than being raised in a communication with the Court, as set out in Practice Note 4; and
(e)having made no prior attempt to contact Justice Dixon’s chambers.
[The Monday email] foreshadowed an application that Justice Dixon recuse himself from any consideration of whether to transfer the proceeding to the Federal Court of Australia, despite the matters set out above.
Finally, when informed that the hearing would proceed before Justice Croucher, you assumed that Justice Dixon had acceded to your foreshadowed recusal application and requested written reasons for that decision, despite:
(a)no application having being made in open court; and
(b)the matters set out above.
The Prothonotary then stated:
The Court considers there is a prima facie case that your conduct as an Australian legal practitioner may have constituted:
(a) a contempt of court;
(b)unsatisfactory professional conduct, contrary to s 296 of the [Legal Profession Uniform Law (Vic)];
(c)a breach of r 4.1.2 of the [Australian Solicitors’ Conduct Rules 2015]; and/or
(d) a failure to comply with Practice Note 4 and/or Practice Note 10.
The letter concluded by inviting Mr McLean, in complying with his duty of candour, to identify any other person involved in sending the correspondence, including in drafting or settling it. Mr McLean filed an affidavit explaining his conduct, and nominated Mr Albert as having played a key role in drafting or discussing the content of the communications, as I have noted.
On 4 May 2021, the Prothonotary wrote to Mr Albert in substantially similar terms, directing him to appear before the court on 21 May 2021. Mr Albert filed an affidavit explaining his central role in relation to the correspondence.
Submissions
Both Mr Albert and Mr McLean proffered full and sincere apologies for their conduct. Although it was not a party to the Prothonotary’s correspondence, VLA sought and was granted leave to file evidence and submissions and appear at the hearing on 3 May 2021.
Mr McLean
Mr McLean was admitted to practise in 2018 and has worked at VLA in the Migration Law Program since February 2019. His experience is overwhelmingly in the Federal courts. By all accounts, he is a talented and committed solicitor.
He stated that he sent the impugned correspondence in conjunction with Mr Albert and without copying in his program manager. Mr Albert drafted the communications. Although Mr McLean read them, he did not make any substantive changes before sending them.
Mr McLean explained that when sending the Friday email, he did not believe he was suggesting to Ms Warren to which judge she ought to allocate the application. He simply sought the quickest possible hearing. Mr McLean stated that when he read the draft provided to him by Mr Albert, he did not appreciate that another interpretation was open. However, he accepted that the Friday email could be read as suggesting otherwise. Mr McLean specifically acknowledged that the last paragraph of the Friday email was inappropriate and apologised for sending it. It seems clear that he did not give proper consideration to the content of the email, drawn by Mr Albert, and failed to exercise independent judgment on behalf of his client.
Mr McLean understood the Saturday email to be a response to the judge’s request for a written submission. At the time, Mr McLean thought the Saturday email to be strongly worded, but was comfortable sending it because it had been drafted by counsel. It is encouraging that he felt the correct impulse, albeit that its benefit was lost through misplaced trust. Mr McLean specifically acknowledged that the language in the Saturday email in several places was inappropriate, and that if an allegation of bias was to be made, it ought to have been made by an application in open court and not by an email to a court officer.
Mr McLean explained that although he was not familiar with Practice Note 4, he was aware of the requirement that an opponent be copied into correspondence with the court. He did not copy a representative of the defendants to the Friday email or the Saturday email because he did not consider that there was a proceeding on foot, and he did not know who the defendants’ representative was.
Mr McLean submitted that there was no real risk, as a matter of practical reality, of actually impeding the administration of justice through his correspondence, and that his failure to realise the communications drafted by counsel might be objectionable did not fall short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
Mr McLean proffered a sincere apology for his discourteous conduct and stated that he will ensure that he is much more careful with his communications with the court in the future, particularly avoiding circumstances where the urgency of a matter affects the content and tone of a communication. He also apologised for failing to familiarise himself with the court’s Practice Notes and Notices to the Profession in relation to the conduct of the matter. Mr McLean said that he would not send the impugned emails again because he understood his mistake and has learned from it. He intends to change his practice.
Mr Albert
Mr Albert was admitted to practise in 2005 and signed the bar roll in 2010. His practice at the bar is predominantly in commercial and public law, the latter largely focused on immigration law. Mr Albert first started working with refugees in 2001 and has been involved in various paid and volunteer roles. He was appointed as a Senior Fellow of the Law School of the University of Melbourne in early 2011, and has taught at least one postgraduate law subject in public/refugee law since that time.
Mr Albert acknowledged that the final sentence of the Friday email was inappropriate and should not have been included in a communication to the court. He accepted that the email carried the meaning that Mr McLean was seeking to direct which judicial officer should hear and determine any question of transfer. He unreservedly apologised to the court for having drafted the correspondence.
Mr Albert acknowledged that the Saturday email was inappropriate and discourteous to both Ms Warren and the court. He stated that he believed he was, in effect, addressing submissions to a judge of the court, through Ms Warren, on the question of transfer, but on reflection saw that on its plain language, the Saturday email might be read differently. He accepted that he acted without due reflection, and exercised poor judgment in addressing the communication to Ms Warren personally and in using language that was unduly sharp and discourteous to the court. Mr Albert also acknowledged that he had not properly reflected on the court’s Practice Notes that I have set out above.
Significantly, with the benefit of reflection, Mr Albert recognised that he should have filed, under cover of a short email, a written submission in a standalone document in the usual submission format. The submission ought to have focussed primarily on why transfer should not have been considered by the court. The discourteous language that was used should have been avoided. He also accepted that he ought not have raised, in the manner that it was, the question of recusal in a communication with Ms Warren that was directed to the issue of the listing of the application before a judge.
Mr Albert acknowledged that on the Monday morning, he assumed that I recused myself from hearing the application when all that he had been told was that I was indisposed. He recognised and accepted that the Monday email was both presumptuous and discourteous and apologised unreservedly for that error.
VLA
Ms Louise Glanville, the Chief Executive Officer of VLA, wrote to the Prothonotary offering an apology to the court on behalf of VLA for Mr McLean’s conduct, particularly the statements and implications contained in the Saturday email. She stated that she was very concerned by this incident and wanted to assure the court that VLA is currently reviewing its practices and policies around the training and supervision of junior solicitors to identify any issues that may have contributed to the conduct described in these reasons. She sought to assure the court that processes were in train to manage this issue and to ensure that it does not happen again.
VLA also relied on an affidavit of Ms Rowan McRae, its Executive Director, Civil Justice, Access and Equity. Following the receipt of the Prothonotary’s letter to Mr McLean, Ms McRae investigated the background to the relevant correspondence, had discussions with Mr McLean and his managers, and spoke with Ms Granville a number of times about the matters raised in the Prothonotary’s letter. Ms McRae informed me that:
(a) in the past, VLA has offered information sessions to its lawyers in relation to professional ethics and court etiquette, but it recognised that further training in that regard is needed, and it will be offered as soon as possible;
(b) further training would be offered in relation to the way VLA lawyers develop working relationships with counsel retained on litigious matters, which will, amongst other things, emphasise that VLA lawyers should always exercise their independent judgment in corresponding with the court and other parties;
(c) VLA has recognised a need to amend its policies to clarify for its lawyers the circumstances where substantive communications with courts required escalation to their managers for approval; and
(d) VLA would introduce clear procedures for the escalation of issues that arise outside regular work hours.
The VLA apologised unreservedly to the court for Mr McLean’s conduct, for its failure to have in place adequate managerial oversight policies in respect of its junior lawyers, and for deficiencies in professional training and guidance it offered to its lawyers.
Consideration
The court’s primary concern is that the conduct of each of Mr McLean and Mr Albert — in particular, in discharge of the fundamental ethical duty to be (honest and) courteous in all dealings in the course of legal practice — fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.[5] In that context, an issue arises whether there was a tendency of the content and tone of the impugned correspondence, when directed to a registry officer, to interfere with the due administration of justice.
[5]See Legal Profession Uniform Law (Vic) s 296; Australian Solicitors’ Conduct Rules 2015 r 4.1.2.
The concerning aspect of the Friday email was the insistence that the application be heard by ‘the current practice court duty judge’, which evinced a tendency to direct Ms Warren as to which judge should hear the matter. This impression was confirmed by Mr McLean’s contact, on two separate occasions, with the associates to Croucher J. Ms Warren had not referred the proceeding, which had not yet been issued, to his Honour.
Mr McLean and Mr Albert have both expressed their regret for causing the Friday email to be sent. Two motivations emerged for their error of judgment.
First, it is clear that both Mr McLean and Mr Albert held deep concerns about the health of their client and were anxious to secure an urgent hearing. It is unclear just how soundly based those concerns were at the time the email was written, having regard to the tentative view expressed by Croucher J on the state of the evidence of applicant’s health in the hearing before him.[6] I accept that the applicant’s circumstances engaged their interests as lawyers specialising in litigation concerning the welfare of persons in immigration detention.
[6]The evidence led before Croucher J did not support the sense of urgency felt by Messrs Albert and McLean based on the applicant’s medical circumstances, although I accept that they genuinely held concerns on the Friday and over the weekend on the basis of their instructions for their client’s welfare.
Second, Mr Albert frankly conceded:
Although I did not know who the practice court duty judge was at the time, I do need to say that I reflected that a hearing of any transfer question in the practice court might mean that John Dixon J did not hear the matter, which might avoid the risk of delay arising from the determination of the issue of transfer immediately and as a separate question, as was the case in MB.[7]
Mr Albert’s forthright admission needs to be understood with the context of the Saturday email.
[7]MB (n 2).
By the time the Saturday email was sent, Ms Warren had informed Mr McLean that a judge of the court had tentatively concluded, subject to any submission from the applicant, that it appeared to be in the interests of justice to be more appropriate that the proposed proceeding, if and when filed in the Supreme Court, be immediately transferred to the Federal Court. That preliminary view was a distinct issue from whether and when the matter might be heard.
I do not accept Mr Albert’s suggestion that he was motivated to avoid the issue of transfer to hasten the determination of his client’s application. Prior to the Saturday email, the court never ruled out the possibility that an urgent hearing might have been scheduled if it was persuaded that it was appropriate. Despite the concerns of Messrs Albert and McLean, the evidence did not warrant an urgent weekend hearing. The matter was listed for 9:30am on the following Monday morning.
I am satisfied that in drafting the Saturday email, Mr Albert sought that the application be heard by another judge because he did not agree with my decision in MB. So much is plain from phrases like:
(a) ‘John Dixon J was plainly wrong to hold otherwise in MB’; and
(b) ‘[John Dixon J] relied at [45] on his own previous judgment in a passage that is inconsistent with all other authority and has been described as ‘nonsense’’.
The court having raised the prospect that the proceeding may be transferred to the Federal Court, Mr Albert intended to make similar submissions in opposition to transfer to those that he had put in MB. He wanted any question of transfer to be argued afresh, with the prospect that another judge might reach a different conclusion. When making submissions before Croucher J opposing transfer, Mr Albert did not refer to the Saturday email as the written submission on which he relied.
The correspondence with Ms Warren was akin to forum shopping — a practice not regarded as compatible with the due administration of justice — but in respect of individual judges of one court, rather than ‘shopping’ between different jurisdictions. It is not a matter for a litigant or their legal representatives to dictate to the court a preference as to which judge a matter is to be allocated. Conveying that the applicant sought to have the question of transfer referred to the current Practice Court duty judge was inappropriate. It is in this context that the correspondence had a tendency to interfere with the due administration of justice.
There was no real risk, as a matter of practical reality, that the administration of justice would be frustrated. Which judge determined the question of transfer was not to the point. However, actual consequences are not the proper focus. The offending characteristic of the conduct is that it has, as a matter of practical reality, a tendency to interfere in the proper discharge by the court of administrative functions in the allocation of the workload of the court for a collateral, possibly improper, purpose. In this case, the impropriety is illustrated by the colour of the language used in communicating privately with a court officer when seeking to avoid having the application heard by a judge who had decided a like application in a manner that would be adverse to the applicant.
What concerned me most about this conduct was that, in engaging in private correspondence with a court officer, rather than with a judge in open court, there was a serious question whether the subject matter, tone and manner of the correspondence fell short of standards of courtesy, competence and diligence to be expected of a reasonably competent lawyer. Practice Notes of court are not issued as optional guides of best practice capable of adoption if desired. The purpose of a Practice Note, when issued by the Chief Justice after approval by the Council of Judges, is to set out the court’s expectations of parties coming before the court. The profession is expected to be familiar with their content and follow their requirements where applicable.
I accept that Mr McLean’s telephone calls that followed on Friday evening and Saturday morning went to Croucher J’s associates because his Honour was the duty judge that weekend.[8] While I accept that both Mr Albert and Mr McLean sought an urgent hearing in the belief that their client was medically very unwell, the desire to have another judge consider the question of transfer was clearly a motivating factor, at least on the part of Mr Albert. At the end of the second day of hearing before Croucher J, the applicant withdrew his opposition to transfer and indicated he would consent to an order transferring the proceeding to the Federal Court. By satisfying the same criteria for an urgent hearing, but without having to argue any issue about transfer of the proceeding, the applicant could have made his application directly to the Federal Court duty judge, thereby avoiding the very delay that Mr Albert contended his email had sought to circumvent.
[8]Although I note that on the same webpage as Mr McLean located the after-hours phone number for the associate to the Practice Court judge, Ms Warren’s phone number is also listed for after-hours inquiries.
In the Saturday email, the language chosen by Mr Albert and adopted by Mr McLean was inappropriate in a number of respects. First, a judge was described, in pejorative terms, as ‘a gatekeeper to the court’ who had ‘a strict policy of blocking any immigration detention habeas corpus application from being heard by another judge in this court’. Not only were these statements factually incorrect, they can reasonably be described as provocative. They were certainly discourteous towards Ms Warren, raising matters of controversy that ought appropriately to have been raised before a judge in open court or in a submission to be relied on in open court, rather than in correspondence with a registry officer.
Mr McLean submitted the content and tone of the Saturday email was explicable when it was understood as the applicant’s submission, as requested, about transfer to the Federal Court, rather than a distinct communication with Ms Warren. By reference to its plain language, that categorisation strains credulity. Although there are paragraphs of the Saturday email that are directed to the transfer question, the communication as a whole cannot reasonably be described as a transfer submission directed to a judge. I am satisfied that the purpose of the Saturday email was to directly challenge the court’s case management of the proceeding, by reference to a perceived but unsound understanding of how urgent applications in the court are allocated, heard and determined.
Notwithstanding counsel’s submissions, which I am not persuaded to accept, Mr McLean realised, on reflection, that he should not have sent the email in the terms drafted by counsel. I accept that it is difficult for a junior solicitor to take issue with documents drafted by counsel, but the exercise of independent judgment on behalf of a client is an essential characteristic for all practitioners. As I stated to Mr McLean during his hearing, the court expects that on and from the time that a person is admitted to practise and has signed the roll of practitioners of this court, they will exercise the independence of mind and commitment to the rule of law that is necessary for all lawyers. The following observation of May LJ in Davy-Chiesman v Davy-Chiesman is particularly germane:
[A] solicitor is in general entitled to rely on the advice of counsel properly instructed. However, this does not operate so as to give a solicitor an immunity in every such case. A solicitor is highly trained and rightly expected to be experienced in his particular legal fields. He is under a duty at all times to exercise that degree of care, to both client and the court, that can be expected of a reasonably prudent solicitor. He is not entitled to rely blindly and with no mind of his own on counsel’s views.[9]
[9][1984] Fam 48, 63–4.
There are a number of considerations weighing in Mr McLean’s favour. I accept that he has proffered a sincere apology and has done so promptly. He was genuinely motivated by his client’s perceived medical condition, believing it warranted an urgent response, and felt an obligation to press the court for an urgent hearing. He relied on experienced counsel.
During Mr Albert’s hearing, I raised three particular issues of concern with Mr Ruskin QC, who appeared for him with Mr Batrouney of counsel. My first concern was that set out earlier in these reasons: it is not acceptable conduct to seek to influence a registry officer to follow some other procedure in allocation of matters for hearing to that set by the judges of the court.
My second concern was that while counsel can (and should) make robust submissions in open court within appropriate, well established ‘rules of engagement’ between bench and bar when pursuing their client’s interests, to communicate in this manner and tone with court officers, including registry staff and associates, is altogether different. It is particularly important that practitioners maintain appropriately high standards in the language used and the manner and tone of communications with the court, just as they must in communications between themselves.
The third concern was that Mr Albert failed to recognise and appropriately discharge his responsibility when working with a less experienced practitioner. It may be accepted that migration/refugee law is fraught with conflict between an (often vulnerable) applicant and the State, and that there are differing views within the community about whether the ideology and policies reflected in the governing legislation provide proper recognition of human rights. Many who actively practise in this area of law do so on a pro bono basis, with a strong and genuine sense of commitment to assist those in the community who are otherwise unable to afford legal representation.
On the one hand, Mr Albert exemplifies that strong commitment to community service. Shortly after he went to the bar in November 2010, he began teaching public and/or refugee law at university, and his very significant pro bono contributions are evidenced by the awards that he has achieved, which include:
(a) Victorian Young Australian of the Year in 2005;
(b) one of the Ten Outstanding Young People of the World in 2005 for his ‘contribution to children, world peace and/or human rights’ by the Junior Chamber International;
(c) joint recipient of the Public Interest/Justice Innovation Award by the Victorian Bar in 2012, as a member of the counsel team in the High Court’s ‘Malaysia Declaration’ case;
(d) joint recipient of the Tim McCoy Award in the same year for the same case;
(e) sole recipient of the Susan Crennan AC QC Award in 2019 for pro bono work at the Victorian Bar;
(f) sole recipient of the John A Gibson Memorial Award of the International Commission of Jurists (Victoria) for 2019; and
(g) sole recipient of the Pro Bono Trophy of the Victorian Bar in 2021.
Mr Albert is entitled to considerable credit for the recognition of his professional achievements. He has practised at the Victorian Bar for more than ten years. That recognition is consistent with his counsel’s submission that he has the experience, intelligence and foresight to not simply recognise an error of judgment, but to analyse why he fell into error and identify what he needs to do to avoid doing so in the future. I accept that to be so.
On the other hand, Mr Albert’s standing as an advocate in migration, refugee, and human rights matters carries responsibilities, particularly towards junior practitioners in the field. It is particularly important in the legal profession that more senior practitioners, especially those regarded as role models by less experienced colleagues with whom they work, recognise and accept their responsibility not to engage in inappropriate conduct. By drafting inappropriate communications to be sent in the name of another person, Mr Albert led Mr McLean astray, setting a very poor example. Further, he disguised what were really his words, presenting them under the signature of another. In doing so, Mr Albert exposed Mr McLean to a difficult test.
Beyond the recognition and analysis of his errors of judgment, Mr Albert’s response has been twofold.
First, he has unreservedly apologised to Ms Warren, to myself and to the court for his conduct. His apology acknowledged proper recognition of his error, and expressed true contrition and regret. I accept his apology as genuine. Mr Albert’s experience ought to have taught him not to behave in the manner in which he did, and while weight can be properly placed upon his character and his professional achievements — including his significant contribution to the administration of justice and the community through pro bono work — those same qualities evidence the significance of failure in accepting the responsibility that comes with the position that he has earned for himself in the profession.
Secondly, Mr Albert has taken active steps in his rehabilitation. In particular, he has sought, and received, advice, guidance and counselling from senior members of the profession. At an earlier point in his career, he was an associate to a former judge of this court, to whom he has turned and who has, and continues, to help him. He is also receiving ongoing guidance and counselling from two very senior barristers; one of whom is well experienced in public interest advocacy and can assist Mr Albert in finding the balance between activism and advocacy, while the other has the perspective of other areas of practice including having served as the chair of the bar’s Ethics Committee.
I have been persuaded, in all of these circumstances, that Mr Albert has recognised, analysed and appropriately responded to his errors of judgment. Importantly, I am satisfied that they will not likely be repeated.
Conclusion
Having regard to the matters I have canvassed, in particular:
(a) the prompt and sincere apologies that have been proffered by each of Mr Albert, Mr McLean and the VLA;
(b) the clear evidence of an appropriate understanding on the part of each of them of why such apologies are necessary;
(c) the demonstrated insight into the steps that need to be taken to ensure that conduct of this sort is not repeated; and
(d) an active commitment to taking those steps,
I am satisfied that these parties are unlikely to repeat, or permit, like conduct in future and have been sufficiently chastened by this process.
I will take no further action.
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